Tuesday, August 23, 2011
Professors Christopher Whytock (UC-Irvine) and Cassandra Burke Robertson (Case Western) have posted on SSRN a draft of their article, Forum Non Conveniens and the Enforcement of Foreign Judgments, which is forthcoming in the Columbia Law Review. Here is the abstract:
When citizens of Ecuador sued Texaco, Inc. in a U.S. court seeking damages for oil contamination in the Amazon, Texaco successfully moved to dismiss the suit in favor of Ecuador based on the forum non conveniens doctrine, arguing – as that doctrine requires – that Ecuador was an adequate alternative forum and more appropriate than the United States for hearing the suit. The plaintiffs then refiled the suit in Ecuador, and a court there entered a multi-billion dollar judgment against Chevron Corporation, which had merged with Texaco. Chevron now argues that the Ecuadorian legal system suffers from deficiencies that should render the judgment unenforceable.
Recently, other defendants have also been experiencing this type of “forum shopper’s remorse.” Having obtained what they wished for – a forum non-conveniens dismissal in favor of a foreign judiciary with a supposedly more pro-defendant legal environment than the United States – they are encountering unexpectedly pro-plaintiff outcomes, including substantial judgments against them. And, like Chevron, they are then arguing that the foreign judiciary suffers from inadequacies that should preclude enforcement of a judgment obtained there by the plaintiff – an argument seemingly at odds with the earlier forum non conveniens argument that the same foreign judiciary was adequate and more appropriate.
This Article shows that under current doctrine, these seemingly inconsistent arguments are not necessarily inconsistent at all. The forum non conveniens doctrine’s foreign judicial adequacy standard is lenient, plaintiff-focused and ex ante, whereas the judgment enforcement doctrine’s standard is relatively strict, defendant-focused, and ex post. Therefore, the same foreign judiciary may be adequate for a forum non conveniens dismissal, but inadequate for purposes of enforcing an ensuing foreign judgment. The result can be a transnational access-to-justice gap: A plaintiff may be denied both court access in the United States and a remedy based on a foreign court judgment. This Article argues that this gap should be closed, and it proposes doctrinal changes to accomplish this.